Arresting the mass detention of migrants: ‘Build trust, not walls’

The pragmatic development of alternatives to detention with civil
society at the fore can help to arrest the slide into the abyss of mass
detention of migrants in Europe.

Jelloh, a participant in Detention Action's alternative to detention project (Detention Action)The possible future shape of immigration detention in Europe lies hidden
between the lines of the Commission’s proposals for reform of the Common
European Asylum System. At first glance,
the proposals seem largely to steer clear of detention. Only gradually does it become clear that they
would create a universe of increasingly punitive measures, leading inexorably
to the detention of anyone foolhardy enough to still think that they can reach
safety in Germany or Sweden by land and sea.

The Commission’s proposals, which were published in May and July 2016,
take the form of a redrafting of the whole of EU asylum law, among other things
recasting the Reception Conditions Directive, creating a fourth version of the
Dublin Regulation (setting out which Member State is responsible for
considering an asylum claim), and converting the directives on asylum
procedures and qualification into regulations, which would be directly
applicable in law in each state.

Detention is rarely mentioned in the proposals. Only the proposed recast Reception Conditions
Directive creates a new ground for detention, relating to risk of absconding,
which is not on the face of it very different to existing grounds. But not for nothing does the Commission
insist that discouraging secondary movement is one of the themes of the
reforms.

The proposals aim to use the asylum process itself to punish attempts to
move on to another country. If you have left Turkey, or another ‘safe country’, you will be sent straight back there,
regardless of family ties in an EU state.
If that proves impossible, you may be punished with an accelerated
asylum process, with less time to obtain evidence and make your case. If the authorities think you plan to travel
on to another EU state, they may impose a requirement to live at a designated
residence or to report regularly to the authorities. The proposals are clear: if you breach these
conditions, and the authorities consider you to be at risk of absconding, you
will be detained.

There is to be no immediate systematic detention of asylum-seekers, as
in the UK’s notorious Detained Fast Track, suspended in 2015 following Detention Action’s successful legal
challenges. But the results may be much the same in
countries on the EU’s external borders. The inadequacy of reception conditions and
asylum procedures in countries like Greece and Bulgaria create powerful
incentives to try to reach better places to claim asylum. Notwithstanding the Commission’s attempt to
assert by fiat that the reformed Common European Asylum System will immediately
‘guarantee’ equal treatment everywhere, these inequalities will not change any
time soon. Migrants will continue to try
to move on. The result is likely to be
detention, potentially on a massive scale.

Such an expansion of detention would have profound implications, not
just for asylum-seekers but for all irregular migrants in Europe.

Nothing will change in the fundamentals of EU law, under which
asylum-seekers can only be detained ‘under very clearly defined exceptional
circumstances’, and detention of any migrant must be proportionate and
necessary, limited to where no less coercive alternatives can be used. What will change if the new proposals are passed is that the
exception will become the norm: the desire to get somewhere where you can be
safe will be the ‘exceptional’ circumstance that will justify detention – in
some countries, potentially for almost everyone.

These are, of course, just proposals.
They will be controversial, and they will not go through
unmodified. Not least, the Visegrad
countries of eastern central Europe will object to even the limited provisions
for the relocation of asylum-seekers within the EU. But they demonstrate the height of the stakes
in the immigration detention debate.

How, then, to arrest this slide into the abyss of mass detention?

The last year, and in particular the EU – Turkey deal, graphically
demonstrates the ineffectiveness of appeals to legality, human rights and
‘European values’. Now that European
leaders see the survival of the EU itself as being at stake on the shores of
Greece and Italy, principled arguments to the Commission against mass returns
to Turkey have proved ineffective.
(Fortunately, so far, no more ineffective than the attempts
to actually enforce such mass returns.)
The reformed Common European Asylum System, as it stands, will significantly
extend the Commission’s power, potentially preventing for example Greek judges from
quibbling whether post-coup Turkey is really such a safe country. If the detention nightmare is to be averted,
we need arguments that are not only legally grounded but also politically
effective.

The most plausible arguments start from alternatives to detention. These are the ‘less coercive measures’,
unchallenged at the heart of EU law, which must be considered before detention
is used. In theory, they should make it harder for states to justify
detention. But the Commission’s reforms
reframe them as stepping stones to detention: first, the asylum-seeker is given
conditions on their freedom, to report regularly and live in a certain place;
then, when they breach those conditions, they can be detained.

This misuse of alternatives must be contested. We cannot afford to stop taking about
alternatives, as it allows us to use the language of European law and values
back at the Commission and Member States.
Alternatives need not be set up to fail and provide justifications for
detention. The Commission’s proposals
highlight the risk that alternatives set up by states can be based on
enforcement and mistrust, and route migrants towards detention.

As I have argued previously, there is another strand of alternatives to
detention. Usually with the active
involvement of civil society, these alternatives are based not on enforcement
but on engagement with migrants. They
start from the common sense premise that immigration and asylum systems that
treat migrants with respect are more likely to be respected by migrants. NGOs, communities and faith groups already have
strong trust relationships with migrants, and are in a much better position
than states to support them to participate actively in migration procedures
where they are.

These alternatives can also address the crucial fact that liberty from
detention is no liberty at all, if you are destitute on the street, without
legal advice, without any effective opportunity to stabilise your situation.
They can show governments that it is in their interests to provide decent
reception conditions, advice and information, which can incentivise migrants to
engage fully with their cases.

Such alternatives need the active involvement of civil society, in
developing, influencing and implementing projects that can get migrants out of
detention, reduce the use of detention, and improve conditions of life in the community. I have described how this is already happening even in the
most desperate circumstances in Greece, where small NGOs like METAdrasi are developing innovative models.

Detention Action’s new report, Without Detention, sets out the potentially crucial role that
the UK could play in the development of alternatives, from a very different
migration context to Greece. The UK is
regionally important here because it has been at the forefront of trying to
resolve migration control challenges through detention: the largest detention
estate in Europe, the only use of detention without time limit.

Crucially, the UK Government is finally acknowledging that this approach
has not worked; following the critiques of the Parliamentary
Inquiry and the Shaw Review, the Government has promised to reform and reduce the detention system; detention centres are
closing.

Here, alternatives to detention can be a way to reinforce and accelerate
this reform process. If the choice is
detention or nothing, decision-makers will tend to choose detention; but if a
range of alternatives to detention can be developed, addressing different needs
and risks, the Home Office can become more confident in resolving immigration
cases in the community. And crucially,
in closing more detention centres. Detention
Action’s Community Support Project is already showing how this approach can
work for even the most complex groups, young ex-offender migrants with barriers
to removal.

These isolated examples need to become part of a movement of
alternatives to detention across the region.
Despite the strong words in EU law, committing to engagement-based
alternatives is a leap for most governments – the sense that other states in
the region are taking the same approach can make it easier. There is growing international momentum towards the development of alternatives,
but much more is needed in Europe.

The launch two weeks ago of Detention Action’s report demonstrated the
beginnings of such momentum: NGOs in the most diverse of national contexts are
seeking to develop alternatives. In the
profoundly challenging political context of Ukraine, Right to
Protection are taking
advantage of a new law providing for alternatives for the first time to explore
how civil society can make these provisions effective in practice.

In Cyprus, Future Worlds Centre are developing a pilot that could shift an
immigration control system that has been very focused on detention, as part of
their longer-term advocacy to reduce detention.
Significantly, their project would involve little that the organisation
does not already do: in common with many community organisations, Future Worlds
Centre already provide the individualised case management that is at the heart
of the most effective alternatives.

Cyprus is an excellent example of how this regional momentum could be
developed. It is a small country, with
limited numbers of migrants, and only one detention centre. It is at the margins of the migration
‘crisis’, and the political stakes are correspondingly lower. As such, it could much more easily shift
towards alternatives than its larger and crisis-ridden neighbours. As an EU Member State, it could become a
vital showcase for the effectiveness of alternatives.

The examples of the UK, Ukraine and Cyprus demonstrate just how
different alternatives will need to be, to address specific political and migration
contexts across Europe. But there are
common themes: in each case, civil society has the knowhow and dynamism to make
alternatives work, both in addressing state priorities and meeting the needs of
migrants.

In each case, alternatives will fundamentally only succeed if they
recognise the perspectives and priorities of migrants themselves. Immigration control based on objectifying
migrants as passive objects of control may be doomed to a cycle of ever greater
coercion and ever greater resistance. Alternatives to detention offer a way to
restructure immigration systems based on recognising migrants as active agents
who make their own decisions.

As Kasonga, of the
Freed Voices group of experts by experience, told the Detention Action launch,
the walls of detention are ‘a clear advert for distrust’. He had to wait for two years in detention for
a single moment of respect and trust, from the detention centre manager, at the
moment of his deepest crisis. Instead,
that respect should be routine throughout the immigration system. In Kasonga’s words, alternatives need to
‘build trust, not walls.’

This article is
published as part of ‘Unlocking Detention’ – an annual ‘virtual’ tour of the UK’s
detention estate, which aims to shine a spotlight on one of the gravest civil
liberties issues in Britain today. To find out more about how to get involved
in this year’s tour, visit www.unlocked.org.uk and follow #Unlocked16 on
Twitter.

About the author

Jerome Phelps is the Director of Detention Action, where he has worked with migrants in immigration detention since 2003. Detention Action is a national charity that supports people in immigration detention and campaigns for changes to detention policy. Jerome has written or co-written four reports on detention, includingPoint of No Return: the futile detention of unreturnable migrants(2014). Follow Detention Action on Twitter: @DetentionAction

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